Liability of Airports for Birdstrikes

M.Sc. Berin Riđanović, associate for aviation law and legal affairs at P.C. Sarajevo International Airport LLC Sarajevo

Abstract:

This study deals with liability for damage caused by collision of birds and aircraft. Since the biggest number of these collisions occur at airports and their vicinity, airport operators are primarily held responsible for the damage. As in the international private air law there is not any unification instrument to regulate liability for the damage caused by collision of birds and aircraft, airlines will, as a rule, have claims against the airport operator in accordance with provisions of substantive law of the international court of jurisdiction or the substantive law according to conflict-of-law norms of the internationally competent court, while passengers in the international air traffic will have claims against Carrier according to provisions of the Warsaw system or the Montreal convention. Persons being on the ground in case of air crash caused by collision of birds and aircraft will claim damage either according to provisions of the Rome convention, adjusted by the Montreal protocol of 1978, or according to provisions of substantive law of the international court of jurisdiction or the substantive law according to conflict-of-law norms of the internationally competent court, depending on reception of the international instruments in domestic legislation.

Key words: bird strikes, liability, airport operator, area of liability, indemnity

 

1. Introduction

Birds are one of the most serious natural threats to security of air traffic operations.
First crash of an aircraft caused by collision with birds on transcontinental route was recorded in 1912. It is estimated that in civil air traffic only 20% of collisions of birds and aircraft are reported, while the total damage caused equals 1.2 billion dollars. Statistically, 90% of collisions of birds and aircraft occur in vicinity of airports, what raises a question of responsibility for the damage caused by these collisions.(1)
The biggest risk of a collision with birds is during take-off and landing. Taking this into account, primary responsibility for elimination of collision hazard is on airport operators.
Collision of birds and planes can cause significant material damage on aircraft but also indirect damage (inability to use the aircraft, repair costs, cancellation of flights), and consequential damage (death of passengers and crew members, injuries of passengers and crew). Damage on aircraft are mostly caused by birds blowing onto the fuselage or wings of aircraft but especially dangerous to safety of flight makes a possibility of aircraft engine sucking in birds what can cause failure of one or both aircraft engines. Sucking the birds in by both engines can cause aircraft crash and significant material and consequential damages.
From 1980 ICAO has been managing a unique information system (IBIS) for keeping records of all collisions of birds and aircraft.(2) As a result of IBIS, now it is known that approximately 70% of the collisions happen during a day, 25% during dawn or twilight, and 15% during night.(3) ICAO recommends keep evidence on a number of bird strikes per 10.000 air traffic operations because such information will be a basis to compare different airports, aircraft types, Carriers and other factors(4)
A hazard of bird strike is unique at each airport and depends on number of air traffic operations, population of the birds having habitat at the airport and their behaviour.
Development of modern technologies significantly reduced a possibility of aircraft crash in case of a collision with birds.
Identifying liability for damage is a complex legal issue and there is no evident legal determinism to define liability for the damage caused by collision of birds and aircraft.

2. International and national legal sources for identification of liability for damage caused by collision of birds and aircraft

In the international air traffic provisions of the Warsaw system or the Montreal Convention are an exclusive legal basis for indemnity in case of death and injury of passengers, or destruction, damage and loss of baggage and cargo.
For damages caused by strikes of birds and wildlife with aircraft, neither on level of ICAO as the most important civil aviation organization, not on the level of the European Union, there has not been established any applicable instrument of the international private and public aviation law. For that reason, in case of claims for damages caused by strikes of birds and aircraft, there will be applied a basic obligation rule of a relevant court or a state referred to by conflict-of-law rules of the internationally recognized court. If the internationally recognized court is in BiH, the Law on obligations(5) will be applied or a basic obligation rule referred to by conflict-of-law norms of the internationally recognized court.
However, ICAO and EU have indirectly regulated liability for damage caused by strike of birds and wildlife with aircraft at airport, by defining measures and procedures to be taken by the parties involved in air traffic in order to reduce or eliminate a possibility of such a strike at airport and its vicinity.
The international legal sources that establish measures and procedures for reduction and elimination of collision of birds and wildlife with aircraft at airport and its vicinity are as follows: 1) Annex 14 to the Convention on the international civil aviation (hereinafter referred to as: Chicago Convention), 2) ICAO Doc 9137 Airport Manual Service, Part 3. Wildlife Control and Reduction, 3) ICAO Doc 9332 Manual on the ICAO Bird Strike Information, 4) ICAO Doc 9184 Airport Planning Manual, Part 2. Land Use and Environmental Control.
Local legal sources have, by rule, taken over ICAO standards and recommendations which define obligations, measures and actions to be taken by each involved party in order to reduce or eliminate a possibility of bird or wildlife strikes at airport and its vicinity. National legal sources are as follows:

1) Rule Book on airports,(6)

2) Rule Book on conditions and way of issuing the airport operator’s certificate,(7)

3) Rule Book for investigation of aircraft incidents and crashes(8)

4) Rule Book on adjustment of technical regulations and administrative procedures in civil aviation.(9)

Safety of air traffic is getting more and more in focus of ICAO, what is obvious from appendices to the Chicago Convention containing all the standards and recommendations adopted by ICAO.(10)
Any standard or recommendation must be incorporated in BiH legislation before it becomes binding.
Bosnia and Herzegovina adopted, with minor modifications, the Annex 14 of the Chicago Convention(11), in form of the Rule Book on Airports,(12) which partly, in Item 9.4. of the Annex 14 of the Chicago Convention – Airports, and Article 180. of the Rule Book on Airports, defines measures and actions to be taken by the airport operator in order to eliminate or reduce a hazard of bird strikes with aircraft. Annex 14 of the Chicago Convention – Airports, from 2013, does not stipulates which agents are responsible to take measures to reduce number of wildlife (birds and game) at airport and its vicinity, because they seriously endanger safety of air traffic operations.
According to Article 180. of the Rule Book on airports, airport operator is obliged to prepare a plan and instructions, measures and procedures related to prevention of wildlife habitats at airport, as well as to have proper equipment and service being in charge for implementation of these measures and procedures. In addition, the airport operator has to keep documentary evidence of implementation of these measures and procedures which areto be used for prevention of wildlife habitats at airport area, as well as to inform the Directorate for Civil Aviation BiH (hereinafter referred to as: BHDCA) on each incident, accident or event caused by collision of the wildlife with aircraft in airport area.(13) Airport operator is obliged, in cooperation with BHDCA, to take actions either to eliminate or prevent placing a waste dump or any other sources that could attract wildlife at the airport or its vicinity, except in case a relevant study on assessment of the wildlife threat ascertains that it is unlikely that the wildlife could endanger safety of air traffic. If such resources cannot be eliminated, relevant authority of the local or regional self-government must provide for preparation of the study on risk assessment of such resources for aircraft and take care to reduce them to the minimum.(14)
In addition to these modest regulations for prevention of bird strikes at airports through Annexes to the Chicago Convention, ICAO decided to define such measures through the ICAO Airport Services Manual, Part 3. Wildlife Control and Reduction, which recommends airport operators to prepare their own Bird/Wildlife Programme Control.(15)
Having in mind the importance of birds and wildlife management at airport area, airport operator is obliged to develop, implement and provide evidence on having the Bird/Wildlife Programme Control, whose content should be adjusted to the size and complexity of the airport, taking in the account identification and risk assessment of bird and wildlife strikes with aircraft.(16)
Airport operator is obliged to install a fence or similar barrier to prevent game and other animals, big enough to endanger aircraft, from going onto maneuvering surfaces.(17) The fence height should be minimum 2.13 metres, or 2.44 metre with added barbed wire. It should be free of any obstacles for 3 (three) metres on each side, but where it is impossible, the fence should be at least 2.44 metres high.(18) Compliance with the international standards in respect of the fence height, keeping the access gates and official passages locked and patrolled, preventing food sources, implementing passive environmental devices on the wildlife,altogether make a basis for elimination or reducing the liability for damage caused by collision of the wildlife and aircraft.

3. Technical aspects of bird strikes prevention

Birds and wildlife at airports are controlled by passive and active methods.
Implementation of passive environmental methods makes the most efficient way to prevent presence of birds and wildlife at airports. Environmental methods change the surrounding at the airport in order to make it unattractive for birds and wildlife. Proper implementation of the environmental methods is a prerequisite for elimination of birds and wildlife at airport. In absence of properly applied passive methods, implementation of active methods cannot have an optimal result.
According to ICAO recommendation, Bird/Wildlife Strike Programme Control at Airport, should contain the following:

1. Airport operator employees’ duties, i.e.:
– Manager who is responsible for preparation and implementation of the Program for prevention of bird strikes,
– Coordinator who monitors daily activities and analyzes collected information to make a risk assessment and then the Program for prevention of bird strikes,- Trained and qualified staff who can detect and record presence of birds and wildlife at airport and assess and exclude risks of brids and wildlife at airport. According to the recommendation, the staff engaged on bird strikes control should pass an ornithological training, too, in order to be able to recognize bird type depending on the way it flies, as wel as to know how to remove dead birds after strike with aircraft.

2. Process of reporting, collecting and recording of live and struck birds and wildlife
animals.(19)
Reporting process means the information about number, spicies and location where birds and animals appear, as well as the measures taken to scatter them from airport area. Airport operator should fill in a report at least every 30 minutes during the day in order to collect as credible information as possible.(20) All the measures taken by the airport operator to scatter the birds and game from the airport have to be supported by documentary evidence.

3. Process of analysing the data and risk assessment regarding bird and wildlife threat in order to implement active and passive measures, what also includes a methodology of risk assessment. The risk is defined as a situation which, under certain circumstances, may lead to a damage resulting incident. In that respect, the risk is a presence of birds and wildlife at the airport or its vicinity. The risk is a probability of an incident multiplied by intensity of a damage threat. In that sense, the risk is estimated according to a probability of a bird or game strike with aircraft, increased by danger of possible damage on the aircraft. Each risk assessment should include estimated likelihood of a bird strike and presumable damage level that can result. Prevailing principle in risk assessment includes intensity of a damage threat. In that sense, the risk is estimated according to a probability of a bird or game strike with aircraft, increased by danger of possible damage on the aircraft. Each risk assessment should include estimated likelihood of a bird strike and presumable damage level that can result. Prevailing principle in risk assessment includes likelihood of a strike and presumable damage that is represented as low, middle or high level, depending on intensity of a strike and weight of a bird or animal, adjusted by a possibility of a strike against the aircraft of a group of wildlife or birds.(21)
Risky areas at airport and in its vicinity are coastal zone, rubbish dumps, sewerage, waste water recycling plants, tanks, lakes, fish-ponds, salt lakes, nature reserves, gravel pits, agricultural crops.(22)

4. Management of habitats and land at airport and its vicinity, aimed at decrease of attractiveness of the area accommodating birds and wildlife.
Where applicable, relevant measures should include techniques of managing the grass areas. There is a significant number of illegally built houses around the Sarajevo International Airport, what due to sown area and crops, makes a risk for occurrence of birds and game in vicinity of the airport. The only measures to be taken by airport operator is to establish contacts and negotiate with land owners in order to reduce but not eliminate sowing of certain field crops. Within the airport complex, airport operator should eliminate all the crops, place protective fence in accordance with the international and national legislation, keep grass height under control in a way to make a balance between availability of the grass for birds and game and the grass height that discourages birds and game. Since rubbish dumps and water channels act as a catalyst for birds and wildlife at the airport area, airport operator should modify or eliminate them in order to decrease bird and game threat at the airport.(23)

5. Process of scattering or eliminating the wildlife and birds also includes use of lethal agents, if necessary. Active methods of scattering the birds or wildlife include: 1) Pyrotechnics, 2) Gas guns, 3) Fire-arms, 4) Laser, 5) Trained falcons, 6) Trained dogs, 7) Traps, 8) Chemical agents, 9) Sound alarms on loudspeakers, 10) Sound alarms from mobile devices, 11) Chemical protective agents, 12) Earthworms removal.
6. Process of building connections with other organizations and land owners so that airport operator becomes aware of additional risks for appearance of birds in infrastructural buildings, vegetation, land and activities near the airport (sowing, harvest, hunting, characteristics of water and ground surfaces, etc.).
ICAO’s recommendation to airport operator is to make connections with the local community and actively participate in development of physical plans and thus reduce a possibility of potential risks (rubbish dumps, crops, etc.).
Consequently, a plan for managing the wildlife and birds should cover the area within a radius of 13 kilometres from airport reference point.(24)
7. Regular meetings of all the parties involved in Committee for prevention of bird strikes or collision of game and aircraft. The Committee for the wildlife management consists of the airport services that are in charge of bird control, airport planning, as well as the operators that might have impact on bird control. The services include the following: airport maintenance, aircraft services, on-flight services, fire and rescue services, security, marketing, finances, etc. The Committee members should review bird strike reports and airport daily activities in order to establish adequate measures of control.(25)
Bird/Wildlife Programme Control can include other elements, too having into account specific features of different airports. In other words, ICAO recommends basic elements of the Program, and it is upon each member country to regulate more extensively obligatory parts of the Bird/Wildlife Programme Control. By implementation of subjective liability for damage, fulfilment of all the recommendations of ICAO and other international civil aviation organizations, as well as fulfilment of the recommendations adopted on national level, is a conditio sine qua non to for exemption or reduction of liability for the damage caused by wildlife or bird strikes at airports.

4. Carrier’s liability to passengers for damage caused by bird strikes

Bird strikes can cause material damage (damage on aircraft or on the ground due to a crash, including damage to houses and infrastructure) and consequential damage (death or injuries of passengers and people on the ground, fear sustained by passengers, aircraft crew and persons on the ground in case of an air crash).
Due to a bird strike aircraft can be damaged or destroyed in a whole or partially, causing direct, indirect or consequential damage.
Direct damage is a consequence of a damage event, i.e. when legal property is directly affected, like destroyed or damaged aircraft, while the indirect damage is a further consequence of the event caused to other legal properties. Indirect damage is an indirect consequence of damage event which in spite of being caused by the original damage event, actually occurred after another event, but under favourable circumstances created by the original event.(26) Indirect damage would be, for example, a loss of Carrier’s profit, compensation to passengers for sustained damage, etc.
Damage caused by a bird strike belongs to concrete damages because it is substantiated by material evidence, like inspection of aircraft, expert evaluation, witnesses and identification papers, while for an abstract damage the existence of damage is presumed and its value is established as a lump sum or according to the pre-set criteria.

In respect of predictability criterion, a collision of birds and aircraft belongs to unpredictable damages.
In case of death or injuries of the international air traffic passengers that resulted from a bird strike out of airport area in any flight stage, passengers or their families will bring legal action against the Carrier requiring compensation in accordance with the Warsaw system27 or the Montreal Convention.28 If a bird or wildlife strike happens, in terms of space and ICAO recommendation, in airport area, passengers or their relatives will file charges for damage compensation against the Carrier as a rule because it is the Carrier’s contractual obligation to transport the passengers from one destination to another at scheduled time, and passengers’ obligation is to pay the adequate fare. Since a failure to execute or defective performance represent a violation of the contract, a claim for compensation will primarily be lodged against the Carrier, while the Carrier may lodge a regress claim to airport operator or the Air Traffic Control Centre.

According to the Montreal Convention provisions, Carrier’s liability for the damage suffered by passengers in the international air transport is in first degree strict liability,29 while in second degree it is subjective.30 If applicable instrument of the internationally competent court is the Warsaw system provisions, it will be a subjective liability of the Carrier for the damage suffered by passengers in the international air transport.31 However, in case of a collision of birds or the wildlife at the airport in accordance with ICAO recommendations, it is also possible that passengers or their relatives may lodge a cumulative claim for a damage compensation against the carrier, airport operator or the Air Traffic Control Centre.
Since a venue of damage event in the international air law is unpredictable and most often unconnected with the country where it occurred, neither the Warsaw nor the Montreal Convention do not stipulate a jurisdiction of a court in the country where a damage event happened (forum delicti).
In respect of the Warsaw and Montreal Convention, jurisdiction is international instead of local. The international jurisdiction of court in countries signatories to the Warsaw system in the international air transport of passengers, baggage and cargo is stipulated by Article 28. of the Warsaw Convention. It says that there are four international court jurisdictions and that plaintiff may bring suit against the Carrier as follows:
– before the court of the domicile of the carrier,
– its principal place of business,
– where it has a place of business through which the contract has been made, and
– before the court at the place of destination.

The Montreal Convention, after adopting these four international jurisdictions regulated by the Warsaw Convention, introduced the fifth international jurisdiction according to which a passenger may bring suit against the Carrier if the passenger has his permanent residence, from/to which the Carrier has its flights either by its own aircraft or other airline’s plane, in accordance with commercial agreement, and in which that airline carries out transport of passengers, in premises which the Carrier lets out on lease or own, or which are let out or owned by other airline with whom the mentioned Carrier has signed a commercial agreement.(32)

5. Carrier’s liability for damage on the ground caused by plane crash after a bird strike

Persons on the ground who suffered damage due to plane crash will claim damage in accordance with provisions of the Convention on damage caused by a foreign aircraft on the ground (33) (hereinafter referred to as: Rome Convention), being modified by Protocol on modification of the Convention on damage caused by a foreign aircraft on the ground (34) (hereinafter referred to as: Montreal Protocol from 1978), or in accordance with provisions of the substantive law of the international jurisdiction court whose implementation is indicated by conflict-of-law norms of the court. Implementation of the Rome Convention is limited, under condition that aircraft has crashed down and caused damage in the country that is a contracting party to the Rome Convention, and that it was registered in the country that ratified the Rome Convention, and in case of implementation of the Montreal protocol from 1978, regardless of the aircraft registration country, if the operator has its main office or runs its business in the country that is a contracting party to the Montreal protocol from 1978. The Rome Convention is not implemented on damages caused by military, customs or police aircraft.(35) According to the Rome Convention or the Montreal protocol from 1978, the right for compensation is granted to any person that suffered damage on the ground if he/she proves that damage was caused by a flying aircraft or from persons or the objects falling down from the aircraft.

Liability for death or injuries cannot exceed the amount of 125.000 SDR per person.(36)
If the liability limits defined by the Rome Convention or the Montreal Protocol from 1978 are analysed, it is obvious that the biggest limit from the Rome Convention equals approximately 26.000 EUR per person, and by the Montreal Protocol from 1978 it equals approx. 148.000 EUR per person. Carrier’s liability for damage on the ground is unlimited in case the Carrier caused it deliberately or by negligence of airline’s representative which is done with purpose to cause the damage.(37)
Strict liability of aircraft operator for damage on the ground is established.
Carrier may be released from liability for damage on the ground if proves that the damage resulted from omission of the person who sustained the damage or his/her representative, or if the damage is a consequence of armed conflicts, riots, or if the plane that caused the damage was seized by the government authorities.(38)
In case of hijack or other misuse of aircraft, there will be a joint and several liability of the Carrier and the person who used aircraft illicitly. The Carrier may be exempted from liability for damaged on the ground caused by unauthorized use of aircraft if he proves that he had paid due attention to prevent such misuse.(39)
The law of the Republic of Italy, Kingdom of Spain, Republic of Austria, Federal Republic of Germany, Swiss Confederation stipulates strict liability of air carrier for damage on the ground caused by air crash and amount of liability is limited depending on the aircraft weight.(40)
In other words, liability for damage on the ground is stipulated in the same way as in the Rome Convention or Montreal Protocol from 1978, or in substantive law of the country whose court has jurisdiction, or the substantive law of the country whose implementation is indicated to by conflict-of-law norms of the country where the aircraft crashed.
Persons on the ground will claim damage at the international jurisdiction court of the country signatory of the Rome Convention where the plane crash occurred due to a bird strike, or at the contracted international court in the country signatory of the Rome Convention if it was contracted among two or more plaintiffs (persons on the ground) or between a person on the ground and the airline.(41) In other words, the international jurisdiction cannot be contracted in any country that has not ratified the Rome Convention modified by the Montreal Protocol. The Montreal protocol did not revise provisions related to the international court jurisdiction being stipulated by the Rome Convention.

In Bosnia and Herzegovina the Law on obligatory and basic substantive-legal relations in air traffic (42) stipulates Carrier’s liability for damage which a flying aircraft causes on the ground, the air crash due to a bird strike or the air crash for any other reason. The Law on obligatory and basic substantive-legal provisions stipulate strict liability of the Carrier for damages on the ground caused by a flying aircraft. The Carrier may be excluded from liability for the damage if he proves that the damage was caused by omission of the damaged party or a person acting on behalf of the damaged party, or if he proves that the aircraft that had caused damage was illegally used by other person and the Carrier had taken all necessary measures to prevent illegal use of the aircraft.(43) The Carrier’s liability for the damage on the ground caused by air crash equals the value of the aircraft at the moment of the crash.(44)

Since Bosnia and Herzegovina ratified neither the Rome Convention nor the Montreal Protocol from1978,(45) in case of the damage that persons suffered on the ground of Bosnia and Herzegovina, a court of jurisdiction will be in the country where the damage occurred,(46) i.e. the substantive law of Bosnia and Herzegovina, under condition that the conflict-of-law norms indicate its implementation.
Basis for implementation of principle lex loci delicti commissi, i.e., for implementation of substantive law of the country on whose territory the damage occurred, is a violation of judicial system to which a sufferer through the damage is liable due to unlawful behaviour in respect of liability for damage on the ground including death, injuries or injuries of third persons, and damage on the ground caused by a plane crash or objects that fell down or were dropped from a flying aircraft.
In case of air crash in Bosnia and Herzegovina caused by a bird strike or for any other reason which resulted in death or injuries of persons on the ground, a special international jurisdiction of a court in Bosnia and Herzegovina,(47) will apply in the following cases:

– If defendant (airline) has residence and main office in Bosnia and Herzegovina,(48)
– If defendant (airline), by his failure to contest a court in Bosnia and Herzegovina, actually agreed to jurisdiction of such a court(49) and
– If damage was suffered in Bosnia and Herzegovina.(50)

6. Airport operator liability for damage caused by a bird strike

The international sources do not regulate the subject of airport operator’s liability, i.e. if the airport operator is responsible on the basis of objective or subjective principle.
Legal theory and judicial practice disagree on this issue.
In case the airport operator is responsible on principle of subjective liability, the Carrier must prove presence of general conditions for liability like: damage event, loss and cause-and-connect connection between damage event and loos, while he has not to prove the airport operator guilt. In case of subjective responsibility of airport operator for damage caused by a bird strike, it is assumed that the airport operator contributed to occurrence of damage by negligence. Burden of proving a greater degree of responsibility is on the Carrier.
On the other hand, airport operator in order to be exempted from liability on subjective principle must prove that he is not guilty for the damage, i.e. that he took all available measures to prevent or reduce presence of birds in airport area. American judicial practice holds a view that the airport operator is not liable for the damage if he proves that he behaved in accordance with all the standards. In that case it is deemed that he acted with due care taking all necessary measures to prevent bird strikes and consequential damage.(519 If the airport operator proves that he took some but not all measures, he can reduce the liability but not be exempted.(52) If airport operator cannot prove that he took all necessary measures, it is hold that the damage occurred as a consequence of his negligence or bad faith with all the consequences that can result from such behaviour.(53)

In the international air law there is no regulation that stipulates liability for damage caused by a collision of birds and aircraft. In other words, for the damage caused by a bird strike, there will be applied provisions of the Law on obligations of the international jurisdiction court or the Law on obligations of the country indicated to by conflict-of-law norms of the international jurisdiction court.
For the damage resulting from objects and activities that increase environmental damage, liability exists regardless of guilt.(54) In case of an strict liability of airport operator for damage caused by a bird strike, it is exclusively upon the Carrier to prove cause-and-effect connection between damage event and loss, as well as its amount.
In case of strict liability for damage, it is not justified to apply the absolute causality criterion, according to which the Carrier should prove exclusively the damage event and loss, while the airport operator is deprived of all defensive acts to exclude the liability. In other words, the airport operator could not call into evidence that the damage resulted from force majeure, fault of the airline or a third party.

Applying the criterion of relative causality which exists in BiH legislation, the Carrier has to prove that the damage caused by a bird strike occurred in the airport area, while the airport operator may require exemption from liability managing to prove that the damage occurred as a result of force majeure, fault of airline of Air traffic control centre.
In Croatian judicial practice it is hold that airport operator’s liability for the damage caused by a bird strike in airport area is subjective because neither the runway itself nor its maintenance are considered dangerous.(55)
On the other hand, judicial practice in the Republic of Italy (56) insist on the airport business as dangerous one. In other words, the liability of airport operator for damage caused by a bird strike in Italy is considered strict.
Since the judicial practice regarding this issue does not exist in Bosnia and Herzegovina, it is hard to anticipate which kind of liability the BiH courts would decide upon, but the view that airport operator’s liability is subjective is more acceptable having in mind a scope of measures to be taken at the airport and its vicinity in order to eliminate or reduce a bird strike threat.

7. Airport operator’s area of liability for damage caused by birds strike

Carrier/insurer is actively identified party in case of damage caused by a collision of birds and wildlife with aircraft, while proper identification of passively identified part(y)(ies) will depend on several criteria as follows:

1) venue of the collision,

2) moment of collision of a bird and aircraft (at airport, in its vicinity, out of airport),

3) extent and amount of suffered loss,

4) consequences of a collision to safety of next flight,

5) activities taken by participants in air traffic, i.e. the activities on monitoring seeing the birds, scattering the birds or reducing their population in airport area, being taken permanently or before a damage occurrence.(57)
Most collisions of birds and planes occur on front part of aircraft (nose, wings and engines), and least strikes occur on the rear, tail part of aircraft.
Question at issue, in terms of space, is in which area the airport operator is responsible for safety of aircraft, i.e. for its safe take-off and landing.
ICAO in its document ICAO Doc 9332 Manual on the ICAO Bird Strike Information (IBIS) stipulates that bird strikes happened in airport area if they occurred during landing at the height of 200 feet, i.e. 61 metres above the ground, or during take-off at the height of 500 feet, i.e. 153 metres above the ground, or they happened during take-off or landing, taxiing on the runway or parking of the aircraft.
In vicinity of airport collisions of birds and aircraft happen during approach of a plane to destination airport, at the height of 201 to 1000 feet, i.e. from 62 to 305 metres above the ground, and during aircraft way up, the strikes happen at the height of 501 to 1.500 feet, i.e. from 154 to 457 metres.
Out of airport are collisions of birds and aircraft that happen during approach stage, at the height above 1.000 feet, i.e. 305 metres, and during the plane’s way up, at the height of more than 1.500 feet, i.e. over 457 metres.(58) The same solution in respect of collisions that happen at airport was contained in ICAO Doc 9137 Airport Services Manual, Part 3. Bird Control and Reduction from 1991.(59)

However, ICAO prepared a revision of ICAO Doc 9137 Airport Services Manual, in which the Part 3 was renamed and now reads: „Wildlife Control and Reduction.“ In other words, the scope of implementation has been extended so that its purpose is not only to prevent bird strikes but also collisions of the wildlife and aircraft; however, a recommendation to define the height at which the collisions can be considered to happen at airport was omitted. It is not clear if ICAO changed its view that liability of airport operator for damage on aircraft can be established according to the criterion of the height at which the collision occurred and if there is another criterion for establishing the liability, or that ICAO found it inappropriate to define in two different documents at which height a bird strike can be considered to have happened at the airport area. In other words, ICAO now only by the document ICAO Doc 9332 Manual on the ICAO Bird Strike Information System (IBIS), from 1989, sets the criteria for establishing whether a strike has happened at the airport or out of it.

Collisions of birds and aircraft that happen in vicinity of airport and out of it can be subsumed under the force majeure what is visible according to interpretation of ICAO recommendation in linguistic terms according to which the airport operator cannot be responsible for collision of birds and aircraft in vicinity of the airport and out of it. This begs the question what ICAO Doc 9332 Manual on the ICAO Bird Strike Information (IBIS) actually is. Annexes to Chicago Convention are standards and recommended practices as minimum requests that member countries are obliged to implement. Supporting documents of ICAO are recommendations that are not obliging for the countries, but may be a guiding principle at courts that establish a liability of airport operator for a damage event.
Airport operator may take active measures for prevention of bird strikes exclusively within the airport’s parameter fence. However, according to ICAO recommendation, using the height criterion for establishing if a bird strike has happened at the airport, in its vicinity or out of it, events that happen at the airport may, in practice, also include bird strikes that happen out of the airport protective fence.

According to the BiH positive legislation, for damage incidents that happen out of perimeter protective fence, but in terms of ICAO recommendation on airport, the airport operator may be considered liable for the damage if the operator did not take measures to eliminate or prevent placing of a waste dump or any other sources that might attract wildlife at the airport or in its vicinity, unless a relevant study on assessment of wildlife threat proves that it is not likely that safety of air traffic will be endangered by wildlife. If such sources cannot be eliminated, airport operator cannot be responsible for damage caused by bird strikes. A relevant body of the local or regional self-government is obliged to assure preparation of a study for assessment of the risks that such sources cause and how to reduce those risks to minimum.(60)

In terms of ICAO recommendation, liability of airport operator for bird strikes may exist in the airport area, but also out of protective fence, under condition that the airport operator did not invite municipal authorities to participate in preparation of physical plans in the radius of 13 kilometres from the airport reference point, or did not advise relevant bodies of municipalities, cities and cantons to take care, while making physical plans, that in the range of 3 kilometres from the reference point there are should not be orchards, vegetable plantations, grain farms, road restaurants, cattle fairs, meat-packaging plants, etc., and in the range of 8 kilometres for the reference point, there should not be fish-farms, waste dumps, cattle farms,(61) as well as under condition that the airport operator did not establish contacts to negotiate with land owners in order to eliminate sowing of certain field crops in vicinity of the airport.

In terms of ICAO recommendation, proclaiming the airport operator responsible for damage events that happened in vicinity of airport or out of it, seems to be unjustified in terms of language interpretation, too.
It is beyond question that, in case of a bird strike within the perimeter protective fence, the airport operator will be passively identified party.
Definition of airport used in positive legislation of Bosnia and Herzegovina, taken over from Annex 14. of Chicago Convention, represents a legal and technical standard in aviation industry.(62) The question arises when defining an airport area, whether to use a functional or technical definition of the notion. According to functional definition, the airport means the entire infrastructure within the perimeter fence, while ICAO definition also includes buildings which are out of the fence. Judicial practice in implementation of provisions of the Warsaw System and Montreal convention take the overwhelming view that the notion of an airport means the area within the perimeter fence.(63)
Since the airport operator cannot take active measures but exclusively passive ones to prevent bird strikes out the protective fence, it would be unrighteous to declare the operator responsible for damage incident that happened out of the airport complex perimeter, even if the incident occurred at the height which, according to ICAO recommendation, is considered as the air space for which the airport operator is responsible for.

8. Air traffic control centre’s liability for damage caused by a bird strike

 Air traffic control centre (64) is responsible for organization and coordination of air traffic at airport, i.e. prior to aircraft landing and take-off, its movement on maneuvering surfaces, flying in vicinity of airport, in a way to give pilots instructions and orders during final approach to the destination airport and during a take-off.
In accordance with a flight plan, Air traffic control centre issues the Carrier a take-off approval(65). Sequence of take-offs and landings is defined by the Air traffic control centre which is responsible for prevention of mid-air collisions of aircraft but also of possible bird and wildlife strikes. The Centre is authorized to suspend take-offs and landings in case of intensified bird activity at the airport or its vicinity. Liability of the Air traffic control centre, or air traffic controller, is subjective, what means that in case of a damage incident caused by a bird strike in the airport area, in terms of ICAO recommendation, the liability of the Centre will based on a presumed guilt(66). On the other hand, the Centre of air traffic control gives directions to the aircraft crews in the airport area and its vicinity, and is responsible for safe taxiing of aircraft on the runway, taxiways, platform, as well as for safe landing and take-off at the airport. Flying plane is a dangerous issue and giving guidance to the crew in airport area or its vicinity is like an indirect steering, and such makes a base for establishment of strict liability for the damage. However, it is commonly acceptable that the Centre’s liability is subjective, because the Centre for air traffic control is responsible exclusive for instructing the pilots who make final decisions how to steer the plane which is, in terms of the law, a dangerous issue.

Air traffic controllers work in the airport tower from which they have the best view of the maneuvering surfaces at the airport and out of it. Having that in mind it seems quite justified not to connect the air traffic control centre’s responsibility to the interior protective fence of the airport but to the height at which a bird strike occurred. In other words, scope of the Centre’s liability for the damage caused by a bird strike is primarily related to the airport area, as compliant with ICAO recommendation, i.e. to landing or take-off, taxiing on the runway or parking, and it goes up to the height of 153 metres (500 feet) during take-off, and to 61 metres above the ground during landing  – 200 feet –  (67).
In case of wildlife and bird strike within the airport complex in terms of ICAO recommendation, actively identified party is the Carrier/its insurer, while the passively identified party is the airport operator and the state (Air traffic control centre) together, or the operator or the state individually (68). As a rule, passively identified party is primarily the airport operator, but there may be a joint and several liability for the damage of the airport operator, the state or the government agency to which the Centre belongs, and in case that the Carrier/its insurer has compensated the damage either from the airport operator or the state that owns the Air traffic control centre, each of the mentioned parties will be able to claim a regress compensation for damage, in proportion with other legal entity’s participation in the damage incident.
Air traffic control centre may exclude or reduce its liability for damage if it proves that the Carrier disobeyed its instructions.
In terms of ICAO recommendation, the Air Traffic Control Centre cannot be liable for the damage caused by a bird strike near or outside the airport.

9. Exclusion from subjective and strict liability of airport operator for damage caused by bird strike

9.1. Exclusion from subjective liability of airport operator for damage caused by bird strike

As a rule, airport operator and Air traffic control centre cannot be responsible for the damage caused by bird strikes that occurred in vicinity of the airport or out of the airport area. Such bird strikes are considered a force majeure.
According to implementation of subjective liability for damage, airport operator is not responsible for the damage caused by a bird strike if he proves for certain that he had taken all reasonable measures and activities being at disposal in order to avoid possible bird strikes, or if he proves that taking such measures and activities was not possible at all for safety reasons (69).
In other words, to be excluded from subjective liability for damage and to prove not being guilty according to the positive legislation of Bosnia and Herzegovina, airport operator must do the following:

1. Adopt a plan and instructions related to prevention of bird and wildlife presence at airport, and stipulate relevant measures and activities,
2. Have all necessary equipment,
3. Establish a relevant service in charge of implementation of such measures and activities,
4. Keep evidence of all the measures and activities on prevention of movement and stay of wildlife at the airport,
5. Prepare procedures for emergency situations that affect safety of aircraft and are caused by presence of birds or mammals in a flying zone of the airport or movement zone, that should include the following: assessment of wildlife threat, adopted procedure for protection against birds and wildlife at airport, and
6. Appoint persons in charge of wildlife control and give the phone numbers on which they are available after working hours (70).

Airport operator’s obligations stipulated in BiH positive legislation are nothing more but the standards and recommended practice taken over mainly from Annex 14 of the Chicago Convention, which has become binding after being implemented into the national legislation, except in case that the state informs ICAO that it finds its own rules inappropriate or hardly compliant with recommended standards and practice.71
A point at issue is whether the airport operator may exclude subjective liability for the damage caused by a bird strike even if fully implements the BiH positive legislation because of lot of measures stipulated in ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife control and reduction, which is a basic international aviation document aimed at prevention and reduction of bird strikes.
The question arises how to treat, in terms of law, the ICAO documents that set up measures to be implemented by airport operator in order to reduce threat of bird strikes at airport area.
Namely, ICAO documents are more scientific publications than legally obliging documents; only after being incorporated into national legislation these documents have their legal identity.72 However, in lack of positive legislation in the field of air traffic operation safety, i.e. due to non-incorporated ICAO safety documents into national laws of each country, ICAO documents are guidelines to courts and often one of legal basis in establishing if single subject have taken all the measures to reduce or eliminate bird strikes within airport complex.

Fulfilment of the obligations set up in the Rule Book on airports and Manual on conditions and way of issuing airport operator a certificate is the minimum that an airport operator in BiH has to meet in order to reduce his damage liability by applying subjective liability, but in most cases, he will not be able to exclude his responsibility, because the obligations set up in positive legislation do not necessarily correspond to recommendations of the international civil aviation organizations and airport operator’s assessment on the measures that must be taken to reduce bird and wildlife population at airport.
Since these are recommendations, airport operator should take all reasonable, justified or applicable measures instead of all recommended ones, if he wants to exclude his damage liability in terms of subjective liability, so that the implementation of the international civil aviation organizations will vary from airport to airport.
Fulfilment of justified and applicable recommendations of ICAO and other international civil aviation organizations, as well as the implementation of obligations and recommendations incorporated into positive legislation is conditio sine qua non for exclusion of subjective liability for the damage caused by bird and wildlife collisions at airport.
ICAO Doc 9137 Airport Service Manual, Part 3. Wildlife Control and Reduction suggests countries to oblige airport operators to establish a Wildlife control program that should give answers to the following questions:

1. Did the airport operator appointed a person in charge of wildlife control at the airport?
2. Is there a plan for use of land at the airport and around it and does it make a constituent part of the Program of wildlife management at the airport?
3. What environmental protection measures have been taken to reduce the wildlife population at the airport and in its vicinity?
4.  Is there a program for management of wildlife habitats at the airport area?
5. Have the waste dumps around the airport been forbidden? If so, what is the distance from the airport where the dumps have been forbidden?
6. Is the perimeter fence around the airport adequate to prevent penetration of the wildlife to the airport complex?
7.  What techniques does the airport apply to scatter the wildlife?
8.  Does the airport have the staff in charge of scattering the birds and wildlife at the airport?

If the airport can offer affirmative answers to the above listed question in judicial and extrajudicial proceedings, he might be able to exclude or reduce his liability for the damage caused by bird or wildlife collisions within the airport, according to the subjective liability principle.

9.2. Exclusion of strict liability of airport operator for the damage caused by bird strikes

A point of reference for establishing strict liability of airport operator for the damage caused by bird strikes within perimeter fence of the airport might be a use of fire arms which is in legal sense a dangerous issue and an active measure for prevention and reduction of bird strikes at the airport area, but also in a legal standard according to which a flying aircraft represents a danger. When implementing strict liability, it is unjustified to declare the airport operator responsible for the damage caused by bird strikes out of the airport protective fence, but also within the airport in terms of ICAO recommendation, because the airport cannot take active measures for prevention of bird strikes out of its perimeter fence.
In case of implementation of strict liability for damage, airport operator may be released from responsibility for the damage caused by bird strikes within the airport protective fence if he manages to prove that the damage is a consequence of force majeure (unpredictable behaviour of birds), action or omission of Air traffic control centre, or by action of the loss sufferer (actions of airline contrary to instructions of the Air traffic control centre).
In addition, if the principle of strict liability is implemented, the airport operator will be able to exclude or reduce his liability for damage, even if he did not take all the measures stipulated by positive legislation and fulfil all the standards and recommendations of the international civil aviation organizations in case of adverse weather conditions not compatible with bird behaviour that can become unpredictable (73).

To be able to prove unusual behaviour of birds, airport operator must have an ornithology study that contains kinds and common behaviour patterns of birds and wildlife within the airport and in its vicinity, or well-documented zones of bird and wildlife routes at the airport and in its vicinity, that are based on long-term monitoring of bird behaviour of expert services of the airport operator.
Only in case of having the ornithology study or well-documented evidence of bird and wildlife routes at the airport and in its vicinity, the airport operator may exclude or reduce his liability for the damage caused by bird strikes at the airport area, within its perimeter fence and out of the fence, but at the airport area in terms of ICAO recommendation, in case of unpredictable behaviour of birds, he can be excluded even he did not take all the measures set up in positive legislation and recommended standards and practice of the international civil aviation organizations.

A bird strike that happens within the perimeter fence can be considered a force majeure episode if caused by natural factors, i.e. weather conditions, unpredictable and unexpected circumstances, i.e. that would have happened even if all stipulated and recommended measures had been taken.

10. Court cases – Bird strikes

10.1. Moscow Sheremetyevo

An Aeroflot Airbus A319, performing flight SU-791 from Moscow Sheremetyevo to Perm (Russia), was climbing out of Sheremetyevo’s runway when the engine ingested a bird resulting in engine vibrations.
Legal Ground for claim was a general agreement concluded between the claimant and the defendant Moscow Sheremetyevo Airport and Rule Book on Ornitological Safety for Civil Aviation Flights.
According to the Agreement, the parties to the Agreement have material responsibility for non-execution of their obligations undertaken by contracts (agreements).
The court established that the defendant allowed irregular execution of ornitologal flight safety which led to bird strike with engine an altitude of about 30 m.
The mentioned was confirmed by the report of the commission, appointed by the head of Interregional Air Transport Territorial Administration.
Russian Federation enacted ICAO Doc 9332 Bird Strike Information System Manual with the valid regulation of USSR Civil Aviation Ministry „Establishment of Ornitological Safety Manual for Civil Aviation Flights“
According to art. 401 of RF Civil Code it is envisaged that, except in cases regulated otherwise by law or contract, unless a person executes his/her/its obligations or executes them in an irregular way during carrying out of entrepreneurial activity, and unless he/she/it can prove that they were not able to execute their obligations due to force majeure, or due to extraordinary or unavoidable circumstances in given conditions, these persons are considered responsible and liable (74).
Thus, court instead of subjective liabilty established contractual and strict liabiltity of airport operator for damage.

10.2. Malta Court Case

In December 2004 an Air Malta aircraft was involved in a bird strike upon take off on its way to London. A flock of starlings crossed the aircraft’s flight-path on take-off, causing extensive damage to the aircraft’s wings and radome. The incident became the subject of litigation as Air Malta (together with its hull insurer) instituted proceedings against Malta International Airport in order to recover damages caused to the aircraft as a result of this bird-strike. Air Malta and its hull insurer, based their claim against Malta International Airport (defendants) on the premise that, as an aerodrome operator, the defendant was obliged to provide an aerodrome which was safe for use and that, as the operator, the defendant had to ensure full compliance with the terms of Annex 14 of the Chicago Convention. ICAO states, in particular application of ICAO standards. The defendant contended that ICAO did not apply to the case, basing its argument on the fact that the relevant ICAO Annex was not ratified under Maltese law and that the only reference to ICAO was made in a public concession contract whereby the defendant was granted the right to operate the aerodrome by the Government of Malta upon privatisation of that particular facility. The defendant argued that a clause that stated that the new operator had to observe all the terms of ICAO when operating the aerodrome facility was only enforceable by the other party to the contract i.e. the Government of Malta. Third parties such as the plaintiffs could not invoke the applicability of such a clause.

The plaintiffs, for their part, also contended that the standard of diligence of an airport operator was that established by ICAO as an industry standard. The court rejected the argument put forward by the defendant and stated that a third party had a right to invoke the applicability of ICAO as providing the operational standards for an aerodrome, unlike other remedies which could only be exercised by the parties pursuant to particular aspects of their contractual relationship. The fact that the concession agreement was available for public scrutiny pursuant to its enrolment on a public register was given particular weight by the court: the court considered this to be evidence of the right of a third party to invoke the applicability of such terms. Without prejudice to their arguments on the inapplicability of ICAO, the defendant contended that it had, at all times, complied with its obligations as aerodrome operator in terms of ICAO. In this regard, the plaintiffs’ arguments were primarily based on allegations that the mechanisms for bird dispersal were inadequate and that an proper system for gathering information on the presence of birds in the aerodrome was not in place. The plaintiffs put forward evidence regarding the presence of birds in the aerodrome on days preceding the incident in order to justify their argument that the mechanisms for dispersal were ineffective. Confirmation of the recurrent presence of birds in the airfield during the incident period was also provided by the pilots operating the flight. It was, however, an ornithology expert’s report that tipped the scales. The report established that the bird dispersal mechanism adopted by the aerodrome operator was inadequate.

The presiding judge upheld the second argument put forward by the plaintiffs relating to the lack of mechanisms guaranteeing the gathering of information on the presence of birds. The judge emphasized that although a general alert as to the presence of birds on the airfield had been given a month or so prior to the incident (by means of what is known as a Notice to Airmen – Notams in aviation jargon) no alert was given on the days prior to the incident when a substantial number of starlings were noted by bird watchers in their statistical information. This statistical information was presented as evidence by the plaintiffs. The judge determined that an effective information-gathering system would have effectively identified the presence of birds and enabled the aerodrome operator to alert interested parties with this information. Evidence given under cross-examination by officers, who were employed by the defendants, indicated that the defendant had not increased the frequency of airside inspections during the period when a large number of starlings were present.

The fact that the number of pre-determined inspections was increased after the incident was not regarded as significant by the judge. The cumulative effect of these deficiencies led the judges to decide the case in favour of the plaintiffs (75). It is obvious that court established subjective liability of airport operator and found extensive contactual liability approach which is shortcoming of this judgement. On the other hand, court set out standards which airport operator are obliged to follow in order to remedy the existing bird hazard In summary, it is clear in this legal case that key question was applicability of ICAO standards and recommendations which are not enacated in Malta legal system.

11. Conclusion

Birds are one of the biggest danger in nature for safe flights. Bird strikes may cause significant damage both on aircraft and on the ground, including damage of buildings and infrastructure and consequential damage (death or injuries and fear suffered by passengers and crew members, or persons on the ground in case of air crash). In the international private law there is not a single unification instrument that stipulates liability for the damage caused by bird strikes, so that the Carrier/its insurer will, as a rule, claim damage compensation from airport operator in accordance with provisions of substantive law of the international jurisdiction court or the substantive law indicated to by conflict-of-law norms of the international jurisdiction court, while the passenger in international air transport will claim damage from the airline in compliance with provisions of the Warsaw system or Montreal Convention. In case of air crash due to a bird strike, persons on the ground will claim damage from the Carrier or in accordance with provisions of the Rome Convention modified by Montreal protocol from 1988, or according to provisions of substantive law of the international jurisdiction court or the substantive law being directed to by conflict-of-law norms of the international jurisdiction court, what will depend on incorporation of the international instruments into national legislation. Most bird strikes occur in the airport area or in its vicinity. Airport operator is primarily responsible for bird strikes in the airport. In legal theory it is debatable what is to be considered the airport area. ICAO now, in its document 9332 Manual on the ICAO Bird Strike Information (IBIS), from 1989, which has a character of a scientific publication and not a legally binding document, sets the criteria to establish whether a bird strike has happened in the airport area or outside, applying the criterion of the height at which the aircraft was at the moment of a bird strike. In my opinion, liability of airport operator may be established if a bird strike happens in the airport complex, i.e. within the perimeter fence of the airport. This theory seems acceptable having in mind that airport operator may take both active and passive measures to prevent bird strikes within the airport complex, while outside the perimeter fence, the operator can take passive measures exclusively.

Airport operator is not subjectively responsible for the damage caused by a bird strike within the perimeter fence of the airport if he undoubtedly proves that he has taken all available measures and activities, reasonable to expect and request from him in order to prevent possible bird strikes, or if he proves that undertaking of such measures was not possible under any circumstances.

In implementation of subjective liability for damage, taking passive measures in accordance with positive legislation and ICAO recommendations, is undoubtedly a base for exclusion of airport operator from liability for the damage caused by bird strikes that, in terms of space, happened outside the perimeter fence, but in terms of ICAO recommendation it also pertains to the bird strikes in the airport area and in its vicinity.

Implementation of strict liability of airport operator for the damage caused by bird strikes is related to the area within the perimeter fence of the airport.

When strict liability is applied, airport operator may be released from responsibility for the damage if he proves that the damage was a consequence of the force majeure (unpredictable behaviour of birds), action or omission of the Air traffic control centre or the action of the loss sufferer himself (the Carrier acted contrary to instructions of the Air traffic control centre).

Given the scope of measures to be taken in the airport area or its vicinity to prevent or reduce bird threat, the view that airport operator should be liable according to subjective principle is more acceptable.

Air traffic control centre is responsible for organization and coordination of aircraft operations before take-off and landing, during aircraft maneuvering on airport surfaces and flying in vicinity of the airport in a way to issue the pilots guidelines and orders during take-off and final approach of aircraft to the destination airport. The sequence of take-off and landing of aircraft is defined by the Air traffic control centre which is responsible for prevention of collision of planes but also for possible collision with birds or wildlife. In case of intensified bird activity within the airport and in its vicinity, the Air traffic control centre is authorized to suspend take-off and landing of aircraft and is subjectively liable for the damage occurred within the airport in terms of ICAO recommendation. However, in airport area, within the perimeter fence, the airport operator is primarily liable for taking the measures for reduction or elimination of bird strikes, while the liability of the Air traffic control centre is as a rule subsidiary, though it may be solidary, too if the Air traffic control centre has not suspended take-off and landing or missed to warn aircraft captains of intensified bird activity in the airport area or its vicinity.

Bird strikes in vicinity of the airport by a rule, and bird strikes outside the airport in all case, are considered a force majeure and for that reason the Carrier will not be able to claim compensation from any party.

____________________________________________

1 ACI Manual on bird control at airports and management of wildlife habitats, First edition (2005). p. 6. On the other hand, dr. Jerry LeMieux in his book One Bird Strike and You Are Out, Solutions to Prevent Bird Strikes, dr. Jerry LeMieux, 2009., says that 75% of bird strikes are registered in vicinity of airports.
2 ICAO in IBIS keeps record of 4 kinds of information, i.e.: 1) Information on bird strikes in member country in IBIS, 2) Information on bird strikes in the world, 3) Statistics on bird strikes, and 4) List of major bird strikes – ICAO Doc 9332 Manual on ICAO Bird Strije Information, (1988), Third edition, p.17
3 ACI Manual on bird control at airports and management of wildlife habitats, First edition (2005), p.6,
4 ICAO Doc 9332 ICAO Manual on the ICAO Bird Strike Information, (1988) Third edition, p.17

5 “Official Gazette RBiH”, No. 2/92,13/93 and 29/03
6 „Official Gazette BiH“, No. 9/11
7 Item 4.13. of the Rule Book on conditions and way of issuing the airport operator’s certificate („Official Gazette BiH“, No. 28/05 and 20/11“) – Management and control of wildlife threat, puts obligation of airport operator to stipulate the following in the Airport Manual: Details regarding the procedure for work in dangerous environment that affects aircraft safety caused by presence of birds or mammals in the flying or moving area at airport, including the following: a) assessment of wildlife threat; b) proper procedure for protection against birds and game at airport; and c) names and assignments of the persons being in charge of the wildlife control, and phone numbers on which they are available after working hours.
8Article 21.paragraph 5.of the Rule Book on investigation of aircraft incidents and accidents („Official Gazette BiH“ No:44/04) – Bird strike threat stipulates: „Aircraft captain shall immediately inform relevant air traffic control whenever he notices a possible threat of a bird strike because if the strike happens, it will result in major damage to the aircraft, loss or failure of important devices. The captain or the operator shall submit a report to BH DCA.
9 „Official Gazette BiH“, No: 81/10. OPS 1420 Reporting the incidents: „If captain has noticed a bird strike, he has to send a relevant body a written report after landing describing a damage on the aircraft or loss or failure on any system. If the strike has been detected in absence of the captain, the operator is responsible for submission of the report.“
10 ICAO standards and recommendations are prepared in accordance with Article 38. of Chicago Convention
11 Rule Book on airports has turned all recommendations from Annex 14 into standards.
12 Official Gazette BiH, No: 09/11

13 Article180. p. 4. and 5. of the Rule Book on airports („Official Gazette BiH, No: 09/11)
14 Article 180. p. 3. and 4. Of the Rule Book on airports („Official Gazette BiH, No: 09/11)
15 BHDCA, based on ICAO Doc 9137 Airport Services Manual Part 3. Wildlife Control and Reduction, prepared the Instruction for control and reduction of the wildlife and birds at airport, which cannot be considered a by-law because of being published only on BHDCA web page instead in the „Official Gazette BiH“, and did not obey a relevant procedure for adoption of the by-laws.
16 ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife Control and Reduction, (2012), Fourth edition, p. 3-1
17 Article 185. of the Rule Book on airports („Official Gazette BiH, No: 09/11)
18 Rule Book on implementation of measures, activities and procedures of access control („Official Gazette BiH“, No. 20/08)

19 One of major factors in assessment of bird strike is reporting. The obligation of reporting about bird strikes and aircraft dates from 23.11.1973 when ICAO sent a letter to all member countries that put them under obligation to pledge air operators to complete a report on each bird strike. In addition to air operators, the report on bird strike may be completed by ground staff, employees of the air traffic control centre and mechanics in charge of aircraft maintenance.19 In 1985 ICAO reassessed contents of the original report form and added a clause by which it obliged air operators to fill in the amount of aircraft damage caused by a bird strike and details of the damage on the aircraft engine. The clause to the report on a bird strike is to be completed only upon precisely defined damage on the aircraft engine – ICAO Doc 9332 Manual on ICAO information system for submission of information about strikes of birds and aircraft (IBIS), (1989), Third edition, p. 1.
20 ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife Control and Reduction, (2012) Fourth edition, p. 4-2
21 ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife Control and Reduction, (2012) Fourth edition, p. 6-1
22 ACI Wildlife Hazard Management, First edition (2005). p. 26, 27, 28.
23 ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife Control and Reduction, (2012) Fourth edition, p. p.4-3

24 ICAO Doc 9137 Airport Services Manual, Part 3. Wildlife Control and reduction, (2012) Fourth edition, p. 4-4
25 Instruction for control of wildlife and birds at airport, published on the web page of Directorate of civil aviation BiH, p.7
26 Law on obligatory relations with comments, Vilim Gorenc, Zagreb 1998 p. 211

27 Warsaw Convention, The Hague Protocol, Guadalajara Convention, Guatemala Protocol and Montreal Protocols 1, 2, 3 and 4 make the Warsaw System in wider terms. As the Guatemala Protocols and Montreal Protocol 3 have not come into force, the current Warsaw System consists of the Warsaw Convention, the Hague Protocol, Guadalajara Convention and Montreal Protocols 1, 2 and 4.
28 („Official Gazette BiH – appendix International contracts“, No: 14/07)
29 Article 21. paragraph 1. of the Montreal Convention
30 Article 21. paragraph 2. of the Montreal Convention
31 Article 20. of the Warsaw Convention
32 Article 33. of the Montreal convention. The Montreal convention, in Chapter V. Integrated provisions from Guadalajara Convention, stipulating in Article 46. of the Montreal Convention the sixth and seventh international court jurisdiction, which says that court proceedings must be initiated, at the discretion of plaintiff on territory of one of contracting parties, either at court where the proceedings can be initiated against the Carrier in accordance with the contract, or et the court that has jurisdiction where current airline has it main office or headquarters of his business.

33 Rome Convention from 1952 was ratified by 49 countries and came into force on 4.02.1958.
34 Montreal protocol from 1978 was ratified by 12 countries and came into force on 25.07.2002.
35 Unlike the Rome Convention, the Montreal Convention applies to the state and military aircraft, unless a state sends a statement to depositor on exemption from implementation of the Montreal Convention to the state and military planes.
36 Limited liability stipulated by Rome Convention is expressed in French francs and ranges from 500.000 francs for smaller aircraft up to 1.000 kilograms, to 10.000.000 francs and 100 francs per kilogram, and 5.000 kilograms for aircraft whose weight exceeds 500.000 francs per person. – Article 11. Rome Convention.
Montreals protocol from 1978 limits liability to the amount of 300.000 SDR for smaller aircarft up to 2.000 kilograms, to 2.500.000 SDR and 65 SDR per kilogram which exceeds 30.000 kilograms for aircraft for aircraft over 30.000 kilograms. – Artilce III of Montreal protocol from 1988. godine
37 In practical implementation of Rome Convention or Montreal Protocol from 1978, it is unlikely that Carrier’s liability will be unlimited, because it would mean that aircraft captain deliberately directed the plane toward a bird or intentionally did not avoid a bird or a flock of birds and thus caused its crash and damage on the ground.
38 Article 5. and 6. Rome Convention
39 Article 4. Rome Convention

40 dr.sc. Maja Bukovac Puvača and Sandra Debeljak Rukavina (2007) Liability for damage caused by misuse of aircraft, Collected papers of the Zagreb Law School, p. 596-598.
41 Article 20. paragraph 1. and 2. Rome Convention
42 Official Gazette SFRJ, No. 22/77 and 12/85
43 Article 148. Law on obligatory and basic substantive – legal aviation relations („Official Gazette SFRJ“, No. 22/77 and 12/85)
44 Article 148. Law on obligatory and basic substantive – legal aviation relations („Official gazette SFRJ“, No. 22/77 and 12/85)
45 European countries that ratified the Rome Convention are the following: Russian Federation, Great Britain, Portugal, Spain, Denmark, Greece, Italy and Norway. Montreal protocol from 1988, of major aviation countries, was signed only by Russian Federation.
46 According to Article 23. of the Law on solving a conflict of law with other countries’ regulations, the competence is given to the law where the event happened or where the consequences occurred, depending on which of these two is more favourable for a loss sufferer. Since the Law on obligatory and basic substantive-legal relation in aviation is lex specialis in reference to the Law on solving a conflict of law with other countries’ regulations, in case of an air crash caused by a bird strike, or for any other reason, provisions of the Law on obligatory and basic substantive-legal relations in aviation will apply.
47 Article 53. paragraph 1. Law on solving a conflict of the law with other countries’ regulations in certain relations (“Official Gazette SFRJ”, No. 43/82 and 72/82) stipulates as follows: In lawsuits on unstipulated damage liability,the court of the Federal Republic of Yugoslavia will be competent if such a competence is in accordance with provisions of Article 46. and Art. 50. to 52. of this Law, or if the damage was suffered on territory of SFRJ.
48 Article 46. paragraph 1. Law on solving a conflict of the law with other countries’ regulations in certain relations (“Official Gazette SFRJ”, No. 43/82 and 72/82).
49 Article 50. Law on solving a conflict of the law with other countries’ regulations in certain relations (“Official Gazette SFRJ”, No. 43/82 and 72/82.)
50 Article 53. paragraph 1. Law on solving a conflict of the law and other countries’ regulation regarding certain relations (“Official Gazette SFRJ”, No. 43/82 and 72/82)
51 Aeroleasing AS v Preswick Airport, Scotland, 1983, Insurance Company of North America and Apslundh
Aviation vs City of New Haven, USA, 1983, Hawaiian Airlines and Underwriter at Lloyd and Certain Insurance
Companies, London v. United States of America, 1981.
52 Martinair v Schiplo Airport, the Netherlands 1980.
53 Fred Olsen Air Transport Limited v Norwich City Council, Norfolk Country Council
and Norwich City Airport, UK, 1979, Safeco Insurance Co of America vs City of Watertown, South Dakota,
USA, 1981
54 Article 154. paragraph 2. Law on obligations (“Official Gazette RBiH”, No. 2/92,13/93 and 29/03)

55 Ante Matijaca (2005), Court Judgments: Pro & Contra, International Bird Strike Committee, Athens p.8.
56 Valter Batistoni (2002), Bird Strikes and the Courts: The Genoa Case, Bird Strike Committee-USA/Canada, 4th
57 Possibility of applying the extraordinary circumstances in case of a bird strike, Ante Matijaca, Eighth workshop on bird strikes, Opatija 2011
58 ICAO Doc 9332 Manual on ICAO information system for submission of details on bird strikes (IBIS) (1989), Third edition, p. 26.
59 Bird strikes are considered to have happened at airport if it is on the height of 0-60 metres during landing, or bird strikes at the height of 0 to 150 metres.

60 Article 180. p. 3. and 4. Rule Book on airports („Official Gazette BiH, No: 09/11)
61 ICAO Doc 9137 Airport planning manual, Part 2. Use of land and environmental management

62 Aerodrome – Defined area on land or water (including any buildings, installations and equipment intended to be used either or wholly or in part for arrival, departure and surface movement of aircraft.
63 In case of stealing the cargo out of the airport, the Montreal Convention is not applied. – Albignia Versischerungs A.G. v. Shenker International, Inc., 344 F.3d 931, Ninth Circuit 2003.
Montreal convention is not applied if damage event occurred during the cargo was transported to the airport. – Eli Lily Do Brasil, Ltda v. Federal Express Corporation, 31 Avi 17,149 S.D.N.Y. 2005.
Provisions of the Warsaw Convention will not be applied if damage occurred in a warehouse off the airport area. – HIH Marine Insurance Services, Inc v. Gateway Freight Service, 28 Avi 16,153, 2002.
Warsaw Convention is not applied for damages sustained one mile out of airport. – Aerofloral Inc v. Rodricargo Express Corporation, 27 Avi 17,724, Third Circuit 2000.
Warsaw Convention is not applied it cargo was destroyed in vicinity but not in the complex of the Heathrow airport. – Read – Rite Corporation v. Burlington Air Express, Ltd, 186 F.3d 1190 at 1194, Ninth Circuit 1999.
Montreal convention is applied if damage occurred in a warehouse within the airport area. – Banihashemrad v. Lufthansa Cargo Ag, 28 F. Supp. 2d 1014, Texas 1998., Kaur v. All Nipon Airways Co, 31 Avi 17,589, 2006.
Carrier’s liability for cargo ends as soon as the cargo leaves the airport area. Article 18. of the Warsaw Convention is quite clear in terms of the airport boundary. – Victoria Sales Corporation v. Emery Freight, Inc 917 F.2d 705,707, Second Circuit 1990.
64 In most countries Air Traffic Control Centre, by a rule, belongs to Directorate of civil aviation, which is an organizational part of the Ministry of transport and communications. The Air traffic control centre at Sarajevo airport is within the BiH Federal Directorate of Civil Aviation.
65 Annex 2. Chicago Convention, Air traffic rules, (2005), Tenth edition, p. 3-6
66 Collisions of birds and aircraft – who is to be responsible, Iva Savić, Eighth workshop on collision of birds and aircraft, Opatija 2011

67 Depending on airport configuration, by way of an exception, the Air traffic control centre may be liable for air strike in vicinity of airport.
68 Since ministries do not have a status of legal entity, passively identified party is the state, federal unit or the government agency to which the Centre belongs organizationally. Passive identification and liability for damage cannot be equalized because in most cases the Carrier is not responsible for bird strikes that happened out of perimeter fence of the airport, but also at the airport itself in terms of ICAO recommendation.
69 Ante Matijaca, Possibility of implementation of extraordinary circumstances in case of bird strikes, Eighth workshop on bird strikes, Opatija 2011, p. 10.

70 Rule Book on conditions and way of issuing airport operator certificate („Official Gazette BiH“, No. 28/05 and 20/11), Rule Book on airports („Official Gazette BiH, No: 09/11)
71 An implicit obligation of all the countries that ratified Chicago Convention is to incorporate 18 annexes of Chicago Convention into their legislation because in case of implementation of Art. 33. of Chicago Convention, the countries would not be able to confirm certificates on aircraft navigation, licences and certificates on worthiness the countries issued as valid, what would put those countries into economic isolation. Annexes to Chicago Convention are prepared in a way that they can easily be incorporated into legislation of any country.
72 dr. Valter Battistoni (2000) A Juridical Approach to the Problem of Bird Strike Prevention, International Bird Strike Committee, Amsterdam. p.187.

73 Ante Matijaca (2011) Possibility of implementation of extraordinary circumstances in case of bird strikes, Eighth workshop on bird strikes, Opatija, p.10.

74 http://www.birdstrike.it

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Literature:

1. Jerry LeMieux, One Bird Strike and You Are Out, Solutions to Prevent Bird Strikes, 2009.
2. Maja Bukovac Puvača i Sandra Debeljak Rukavina (2007) Liability for damage caused by aircraft misuse, Collected papers of the Zagreb Law school
3. Ante Matijaca, Damage Liabilty and Compensation in Case of Bird Strike, Bird Strike Commitee 2001.
4. Ante Matijaca, Possibility of implementation of extraordinary circumstances in case of bird strikes, Eighth workshop on bird strikes, Opatija 2011
5. Ante Matijaca, Damage Liability and Compensation in Case of Bird Strike, Bird Strike Commitee 2001.
6. Ante Matijaca (2005), Court Judgments: Pro & Contra, International Bird Strike Committee, Athens
7. Bird strikes – who is to be considered liable, Iva Savić, Eigthth workshop on bird strikes, Opatija 2011
8. Valter Batistoni (2002), Bird Strikes and the Courts: The Genoa Case, 4th Bird Strike Committee-USA/Canada,
9. Max Hamerli (1952), Die Haftung des Flugplatzhalters im schweizerischen Recht, Bern
10. Convention on alignment of certain rights in air traffic, concluded in Warsaw in 1929 („Official Gazette of the Kingdom of Yugoslavia“, No: XXXVII)
11. Convention on alignment of certain regulations in the international air traffic („Official Gazette BiH – appendix International agreement, No: 14/07)
12. Convention on damage caused by foreign aircraft on the ground, from 1952 – Rome Convention
13. Protocol on modification of Convention on damage caused by foreign aircraft on the ground, from 1978 – Montreal protocol
14. Law on obligatory and basic substantive-legal relations in aviation (Official Gazette SFRJ, No. 22/77 and 12/85)
15. Law on solving conflict of law with regulations of other countries in certain relations (“Official Gazette SFRJ”, No. 43/82 and 72/82)
16. Law on obligations (“Official Gazette RBiH”, No. 2/92,13/93 and 29/03)
17. Annex 14 to Convention on the international civil aviation
18. Airport rule book (Official Gazette BiH“, No. 9/11)
19. Rule Book on conditions and way of issuing an airport operator certificate („Official Gazette BiH, No. 28/05 and 20/11“)
20. Rule Book on investigation of aircraft incidents and accidents („Official Gazette BiH“ No:44/04)
21. Rule Book on implementation of access control measures, actions and procedures („Official gazette BiH“, No: 20/08)
22. Rule Book on alignment of technical regulations and administrative procedures in civil aviation („Official gazette BiH“, No: 81/10)
23. Instruction for wildlife and bird control at airport – BHDCA
24. ICAO DOC 9332 Manual on the ICAO Bird Strike Information system (IBIS), Third Edition
25. ICAO Doc 9137 Airport Service Manual, Part 3 Wildlife Control and Reduction, Fourth Edition 2012.
26. ACI Aerodrome Bird Hazard Prevention and Wildlife Management Manual, First Edition 2005. ,
27. ACI Aerodrome Bird Hazard Prevention and Wildlife Management Handbook, First Edition 2005
21
28. Aeroleasing AS vs Preswick Airport, Scotland, 1983, Insurance Company of North America and Apslundh
29. Aviation vs City of New Haven, USA, 1983, Hawaiian Airlines and Underwriter at Lloyd and Certain Insurance
30. Companies, London v. United States of America, 1981.
31. Martinair v Schiplo Airport, Netherland 1980.
32. Fred Olsen Air Transport Limited v Norwich City Council, Norfolk Country Council and Norwich City Airport, UK, 1979, Safeco Insurance Co of America vs City of Watertown, South Dakota, USA, 1981